Elena Kagan.
Elena Kagan. (Photo: Diego M. Radzinschi/NLJ.)

The U.S. Supreme Court ruled Monday that only a limited category of children of immigrants are eligible for visas when they “age out” and turn 21 while their applications are pending.

By a 5-4 vote, the court in Scialabba v. Cuellar de Osorio upheld a formula adopted by the Board of Immigration Appeals and supported by the Obama administration to restrict the number of aged-out minors who are able to keep their preferred place “in line” for visas based on how long they were waiting. Only those who would qualify for visas without new sponsors can keep that preferred status, the court ruled.

The justices divided in an unusual way. Justice Elena Kagan wrote an opinion for herself and justices Anthony Kennedy and Ruth Bader Ginsburg. Chief Justice John Roberts Jr. concurred in the bottom-line judgment of the Kagan opinion, and was joined by Justice Antonin Scalia. Justice Sonia Sotomayor wrote a dissent, joined by Justices Stephen Breyer and Clarence Thomas. Justice Samuel Alito Jr. wrote a separate dissent.

Reflecting the often complex and bureaucratic language used in immigration regulations, Kagan inserted this warning on the page of her decision that described different categories of preference for citizenship: “A word to the wise: Dog-ear this page for easy reference, because these categories crop up regularly throughout this opinion.”

Later, in explaining another set of immigration categories, Kagan wrote, “The first two are complex but, with some perseverance, comprehensible. The third—the key provision here—is through and through perplexing.”

The case involves efforts by a U.S. citizen to obtain visas for her daughter and the daughter’s family in El Salvador—a benefit available to the families of immigrants who have become U.S. citizens or hold permanent legal resident status. Because one of the daughter’s sons “aged out” by turning 21 while the application was pending, he had to stay behind while his family moved. The son, Melvin Cuellar de Osorio, has been waiting for the visa for 15 years. The law at issue allows certain categories of aliens who turn 21 to retain their place in line, but the question before the court was how broadly the law sweeps.

The U.S. Court of Appeals for the Ninth Circuit sided with the family, finding the act has an unambiguously broad scope.

But the United States, arguing on behalf of Alejandro Mayorkas, then-director of U.S. Citizenship and Immigration Services, argued for a narrower reading embraced by the Board of Immigration Appeals. The government argued that if too many aliens retain their favorable place in line when they turn 21, they would “substantially disrupt the immigrant-visa system” by increasing the wait time for others.

The new name for the case, Scialabba v. Cuellar de Osorio, reflects the fact that Lori Scialabba is now the acting director of U.S. Citizenship and Immigration Services.

Contact Tony Mauro at tmauro@alm.com.